Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, December 31, 2006

A federal appellate court in Virginia recently ruled that a state prisoner was denied his rights under federal law when the state refused his request for a kosher diet. Religious Land Use Law is Upheld, Richmond Times-Dispatch, Dec. 30, 2006. "Ira Madison, a Hebrew Israelite and a member of the Church of God and Saints of Christ in Suffolk, sued the state and various Department of Corrections officials in U.S. District Court in Roanoke in 2001, saying his requests for kosher meals while an inmate at the Buckingham Correctional Center were being denied. Madison argued that the state violated the federal Religious Land Use and Institutionalized Persons Act." Id.

The ruling is unremarkable except to suggest that the Taxing and Spending Power, recently thought ripe for narrowing under our new Supreme Court regime, appears to be alive and well, at least where religion is involved. As a consequence, the conservatism that brought the United States a new sensitivity to religion in state action also promises to continue to march down the path to the certain obliteration of states as a semi sovereign viable level of government in the United States and takes us one step closer to the end of the federalism experiment started by the Founders of the Republic.

In a remarkable essay, the 19th century Colombian (correction Ecuadorian) author Juan Montalvo drew on the symbolic character of the germinal leaders of their respective nations--George Washington and Simon Bolivar, to sketch the fundamental distinctions between North and South American political culture. (Juan Montalvo, Los héroes de la emancipación de la raza hispanoamericana, in Siete Tratados (Paris, 1883) reproduced in Conciencia intelectual de América: antología del ensayo hispanoamericano 132-134 (Carlos Ripoll, ed., New York: Eliseo Torres, 1966). The essay is particularly relevant today as a basis for understanding the difficulty that North and South American political cultures have in harmonizing approaches to law and legal culture.

Saturday, December 30, 2006

Today, Saddam Hussein, former leader of Iraq, statesman, leader of the Iraqi Baath party, brutal dictator and the man who, in the name of the state and for the retention of his own power and that of his followers, ordered the death of many people, and caused the death of many others, was executed after trial by a court constituted for that purpose by his successors, the judges of which were installed with the approval and guidance of the military occupation authorities of Iraq and trained in the techniques of judging by representatives of Western judicial elites in London.

In 1957, on the eve of the Cultural Revolution, Deng Xiaoping famously reminded the Chinese Communist Party ("CCP") that, as the party in power, it must be willing to accept supervision. Deng Xiaoping, The Communist Party Must Accept Supervision, in I SELECTED WORKS OF DENG XIAOPING, 1938-1965 (People’s Daily On-Line ed.) . For Deng, the issue was how to best appease the masses and avoid the problem of “big democracy.” Deng did not expect perfection, just a pragmatic balancing of the realities of human nature and the needs of a satisfactorily running state. Particularly, in connection with its relations with the masses, the CCP should expect that “occasional disturbances are unavoidable. This still is no cause for alarm; in such situations we should just stay calm and try to face the masses, rely on them and explain things to them painstakingly. Then, disturbances will subside.” Id.

A report from China on December 9, 2006 and reported in the foreign press (Edward Cody, Public Shaming of Prostitutes Misfires in China, The Washington Post, Dec. 9, 2006 at A-10) provides a glimpse into the way that the Chinese Communist Party may be open supervision, and thus supervised, to the institution of a rudimentary rule of law culture at the core level of social organization. The story relates a curious incident in Shenzhen. It seems that local officials were faced with a dilemma. Provincial girls were flocking to the city, many of them then reduced to prostitution to service a growing population of factory workers. Because of its proximity to Hong Kong, the prostitution trade was particularly lucrative, since Hong Kong residents found the Shenzhen prostitutes an acceptably cheap substitute for their delights of Hong Kong.

This presented the authorities with a problem: how to control vice in this rapidly growing area. The authorities chose an age/old method, common, in its own way, in the United States as well as in China, apparently. The authorities chose to humiliate the prostitutes and their clients. In the United States, the authorities or others sometimes publish the names of people arrested on vice charges in the local newspapers. In Shenzhen, the authorities, in the form of the Futian Public Security Bureau, chose to parade “about 100 women and their alleged johns in the street, using loudspeakers to read out their names and the misdeeds they were accused of committing. News photographers snapped away while thousands of residents lined up to take in the show.” Cody, supra.

But this time, the popular reaction to this attempt at vice control was unexpected. Rather than react against the spread of vice in the area, local groups quickly denounced the local authorities for the violation of the privacy rights of the victims of the parade. A local lawyer wrote to the National People’s Congress to protest what he considered to be the unlawfulness of the Futian Public Security Bureau action (illegal under current law and likely to have a baneful influence on the people and China’s reputation abroad). Id. In particular, the lawyer suggested that the humiliation violated the legal process rights of people accused but not yet convicted and that the humiliation itself was uncivilized (and thus, slyly implied that it ran contrary to the thrust of the great ideological campaigns of the Chinese Communist Party—from Sange Daibiao to ba rong ba chi).

In addition, the All China Women’s Federation complained that the parade constituted an insult to all Chinese women. Id. Again, slyly suggesting the dissonance between the action and the ideological basis of Chinese political society, the federation noted that such parades damage “the development of human civilization [and] has no place in a modern society.” Id. Others suggested that the tactic was uncomfortably close to the tactics used during the worst days of the Cultural Revolution and that the parade exceeded the penalties currently on the books for prostitution (administrative detention). Id.

Edward Cody, who wrote the article, drew as a moral of this episode, the idea that China has come a long way and, quoting Kang Xiaoguang, a sociologist with the Rural Development Institute at the People’s University of China, that “the public has a stronger sense of human rights and privacy protection.” Id.

I would draw a related moral from this story. The Chinese masses have been listening to their political elites. They have been absorbing the substantive meaning of the ideological campaigns that have pointed almost uniformly in a single direction since the leadership of Deng Xioaping in the late 1970s. The masses have absorbed the important message of rule of law, at least in its raw state. The masses grow less tolerant of activity that tends to ignore rule of law as applied. While the masses may not interpret the application of rule of law accurately all the time, or well, the common people are developing a sense of actions that suggest arbitrary activity. They demand a justification in law for action that does not appear to be in conformity with it. Even the Party is subject to its won rules. Rules that do not work ought to be abandoned through a formal process rather than ignored at the whim of local officials. The Party has accepted the supervision of laws of its own making. It must now, as Deng Xiaoping suggested a long time ago, also accept the supervision of those whose welfare is their primary concern. If the Party wishes to avoid the dangers of big democracy, if the Party seeks to remain the party in power, it would do well to follow Deng’s advice and accept the supervision of its own laws and the insights of its own people.

Without lesser democracy there would have to be greater democracy, because the masses need to find outlets for their anger. Our idea is to provide places for the masses to vent their anger, places for them to speak their mind and places to make appeals. The suggestions of the masses fall into the following categories: Some are reasonable and should be accepted and put into practice; it would be wrong to ignore them, which would be bureaucratic. Others may be basically reasonable, in which case the reasonable part should be put into effect and explanations offered concerning the part that cannot be put into effect. Still others may be totally unreasonable, in which case we should explain to the masses why. In brief, the masses should have plenty of opportunity to air their views, offer suggestions and give vent to their anger -- at people's congresses, political consultative conferences, workers' congresses, students' congresses, and so forth. Greater democracy can be avoided if there is lesser democracy. Nobody would demand greater democracy and no workers or students would go on strike once the masses have vented their anger and every effort has been made to solve their problems. Deng, 1957, supra.

The officials in the Futian District ought to have a lot of explaining to do, to the Party, to the State, and to the masses, all of which he serves through law bounded by the substantive ideology of the people expressed through its party in power.

Sunday, December 10, 2006

The Minority Groups Section remains one of the most vital sections in the Association of American Law Schools. Its institutional presence serves as a constant reminder of the progress that traditionally disadvantaged groups have made within the legal academy in the United States, as well as the progress that remains to be made. But that task, and those accomplishments provide a deeper insight we might do well to consider more fully. Like many of us in our other relationships with the community at large, the Section stands both apart from and comfortably, perhaps too comfortably, within the community of academics in the United States the AALS seeks to serve. And that brings me to the point of this short essay on the role of a community of faculty connected by ties of status in an organization otherwise largely divided by interest in one or another field of law: the Section must, in its programs and actions, remember that while it is a part of this great organization, it ought to always stand apart from it as well.

One of the great tasks of this Section has been to naturalize the contributions of its members to the academy. That remains a difficult task, requiring some of our colleagues, and the institutions in whose governance they participate, to abandon systems of judging that supposed many of our members to be invisible or required them to mimic some imposed model of academic perfection, a model our members had little hand in creating, for a chance at continuing appointment. For everything from challenging assumptions of what constituted scholarship worthy of the name, to who might produce these works (and in what forms), to issues of educating students to overcome their own personal and cultural prejudices, this Section has lent its hand whenever it could. Its greatest activity may be to provide refuge. This Section opens its institutional home to the marginalized, to those who have been demonized, to those who might be cast away. This Section also serves to amplify the many voices that together make up a mellifluously dissonant chorus that can only better serve to move us closer to the ideals that help shape our political society. But perhaps the greater task for this Section has been to develop behaviors that demonstrate that, at least at an institutional level, individuals can participate in as equals within an environment respectful of difference but united within a community of shared values. Not political or economic values, to be sure (that would be dreadful indeed), but of ethical values springing most assuredly from a heightened understanding of human dignity in all of its complexities and contingencies.

The role of the stewards of this Section ought to be to help the Section and its members to more effectively stand as part and apart from its colleagues within the majority organization. Stewards ought to serve as a voice for the collective will of this Section and its members, to undertake those tasks that further embed each member as individuals within the fabric of academic life on terms of equality, mutual respect and dignity. One of the great tasks of a Minority Groups Section is to spread word of the great work of the members of this Section.

Many of the Section’s members have already achieved well-deserved national and international prominence. The Section has an obligation to ensure that other voices within the Section are also provided with greater opportunities to let the world know what they are doing and what they are thinking. The Section’s members are at their best when they seek to serve each other. The Section works its greatest good when it looks for easier ways to share its members’ accumulated knowledge of teaching and the techniques of service and the production of knowledge.

I was thinking about the dynamics of hiring candidates for law faculties recently. Decisions with respect to hiring are complex matters. Each decision may be based to some substantial degree on the general qualifications of the candidate. But that is merely the start of the analysis. Other considerations are also important—and many of them call for judgment. This judgment is not simply subjective, as we might tend to understand the term; it does not refer to the usual sort of judgment faculty sometimes indulge in from time to time—fear of competition, protection of turf, fear of racial/ethnic/gender ‘tipping,’ or strong feelings against a particular field of inquiry (for example against critical race or law and economics work).

Yet, the judgment I speak of is not of a simple objective sort. Rather, our judgment is meant to be highly contextual—relating in large measure to who a faculty is and what a faculty has stated it wants to be. It ought not be center on whom the candidates are and what the faculty ought to expect from them at a minimum. The one thing faculties ought not do when considering a candidate is to decide on a hire on the basis of some causally falsely objective criteria—for example, all things being equal, would the person possibly succeed as a law professor somewhere. At bottom, a faculty, as a collegial body, must rely on the good faith judgments of its members (judgments that might be wrong in retrospect), but judgments made on the basis of appropriate factors fairly considered and consistently applied.

But context is a funny thing. Faculties sometimes say things they do not mean. Faculties mean things they do not say. Sometimes, and actually far more often than we care to admit, faculties speak out of several sides of their mouths. Faculties sometimes start a hiring process from the most theoretically and contextually pure of motives and out of desperation or changes of heart end a process through clumsy exercises in ‘realpolitik’ or making do. And sometimes, more often than we care to admit, candidates’ fortunes rise ort fall with the collection of alternative invitations they obtain (and are wise enogh to communicate).

Many faculty, for example, are quick to declare that they have embarked on one or another great project of moving their institution into the top ranks of the legal academy. Sometimes, this great project is officially endorsed on web sites or a law school’s various marketing vehicles. Often, however, these expressions are meant for purposes other than that for which they are expressed. As a consequence, the hiring process devolves into a process of carefully preserving the forms but not the substance of such mandates. It is difficult for faculties to avoid lip service mandates.

Suppose, however, that a faculty meant what it said about a commitment to moving their institution into the top ranks of the legal academy, as such movements are conventionally measured. For this exercise let us assume away the usual caveats of such endeavors—that such movements cannot be measured with any assurance; that such movement is inherently subjective, involving as much aggregate reputation as achievement of any measurable objectives; that measurements in any case, are always geared to confirm the position of certain institutions at the top of the reputation pecking order (a carefully designed reverse engineered system of objective measures, which take as their ideal the characteristics of institutions that must be ranked at the top of the scale can produce such results consistently over the years); that such measures are shooting at a moving target, etc. In those circumstances, what is the basis for making conventional judgments about the suitability of a candidate for a position at a law school with such an ambition (that is the ambition to move into the top ranks of the academic rankings)?

I would posit that approaches to legal research have now developed into at least three clear levels or approaches. I suspect that a faculty’s emphasis on a particular level of analysis, at an aggregate level, may have an impact on the reputation of that faculty as a whole. I would further posit, that in the current state of American law schools, such a candidate might have to demonstrate performance at what I might call a third level of analysis in her research and approaches to the study of law. I make no judgment about the value of suitability of these levels or approaches to law and legal study. Indeed, there may be a good case made for inverting the reputation order of scholarship. But I am calling it as I see it. Where it goes requires aggregate behavior and preferences changes beyond my abilities to influence to any substantial degree.

Performance of even entry level candidates at a level suitable to the top ranks of the legal academy (judged on a global, rather than on a parochial, basis) requires more than a mere facility with law at what I consider a first level of analysis. First level analysis consists of the identification of an interesting legal problem arising from deficiencies in statutes or case law or as a result of changes in patterns of behavior or technology, examine the character of the problem and propose an approach to its solution through changes (usually legislative) in behavior. This is the sort of reasoning one tends to see very often, but is also the type of effort that tends to be weeded out in many of the top global peer reviewed journals. But, of course, not always. It is the sort of approaches to the study of the law critical to the functioning of bench and bar on an everyday level; the sort of scholarship that was once highly prized at all levels. Applying social class analysis by analogy, one might look on this as the sort of working class level of law studies; it is essential for the functioning of the social order, but the sort of class from which conventionally ambitious parents might want their children to escape.

Nor are performance expectations at the highest levels satisfied, in my judgment, with the less common second level of analysis. Second level analysis consists ordinarily of an identification of a general policy framework within which an interesting legal issue might arise, and an engagement of policy or broader analysis, sometimes at least recently, accompanies by a rudimentary comparative analysis of some sort (for example, it was common to engage in simple legal/cultural analysis in transnational legal issues affecting East Asia, especially in the 1990s). From my perspective, this is the sort of analysis one tends to see more commonly in the so-called “better student edited journals” (but not always). This is today’s “meat and potatoes” scholarship. It invariably tends to provide the foundation of good regional programs, for example those developed at many state or state supported institutions (whose excess reputation might then be attributable to other factors—in state tuition differentials, proximity of better reputed competitor institutions, perceptions of the “market” etc.). Applying social class analysis by analogy, this second level tends to consist of the middle class, the good burghers, the great guardians of the institution and institutional norms. This is the comfortable sponge of the profession, absorbing the products from other classes but trying to remain true to its good old fashioned values.

Critical for sustained performance at the level conventionally expected at the top of the institutionalized profession is a clear and not incidental evidence of a facility with what I term third level analysis. Third level analysis consists of strong evidence of broader theoretical implications of analysis, an understanding of the principles or foundations within which the problem is grounded, possibilities for interrogating that grounding, and an engagement with those broader and deeper themes, both in connection with the specific issue examined and its spillover effects. This is the sort of “deep command of the problem” work that provides broad perspective, deep insight, and application to specific issues (again, though not always). It suggests knowledge of the connection between the specific and the general, the surface and the foundation, in a thoughtful way. Clearly, entry-level candidates will not have fully developed this facility. On the other hand, personal experience suggests that this facility exists in entry-level candidates—and even entry-level candidates without an advanced degree (other than a J.D.). This is the upper class of the profession—sometimes eccentric, and financially independent enough to do what it wants without much of a regard for anything else, other than the requisites of its own leadership. The up side is the ability to pull the profession, and the study of law in whole new directions, the down side is the arrogance and control of authoritative investigation that can sometimes suffocate other endeavors that tend to threaten its position. But I guess one takes the good with the bad as long as one is willing to continue to subsidize the current academic social order. And double standards, anti-democratic tendencies, and failures to live up to the promise of institutional status always dog this group.

So, it appears to me, scholarship does matter, and the form of scholarship matters most. For all that the academy speaks the language of inclusion, democracy, judgments purely on ‘merits’ and the like, it acts, like every other institution, to solidify hierarchy and a complicated system of status sorters. It seems that the sort of scholarship one engages in is, like salaries and other evidences of status, continue to contribute to the maintenance of a proper order in our institution. In institutions like these, every actor knows its place, and the systems for maintaining the appropriate hierarchical order have been developed to preserve that order. It is not that institutions cannot be upwardly (or downwardly), it is just that such movement is not as easy as it might seem. The institutional ordering of the academy makes such movements more rather than less difficult. But in this the academy is little different from other institutions. In this context, it may be wise to be suspicious of articulations of aspirations to “move to the highest ranks” of the academy; and it helps explain why it lip service may be the most efficient means of living within one’s assigned level in the academic hierarchy.

Near the end of the speech, Castro reminisced about a now famous episode the occured a moment that provided him with a great insight, a moment in which in the mountains of Cuba, he faced the certainty of death, which he reduced to its essence--"las ideas no se matan."

Here is a basic English translation of this passage provided by the Cuban government::

Now we can say the same thing a lieutenant said who took me prisoner in a forest near Santiago de Cuba in the early hours of dawn several days after the attack against the Moncada army garrison. We had made a mistake, there is always a mistake. We were tired of sleeping on the ground, over roots and stones, so we fell asleep in a makeshift hut covered with palm fronds. Then, we woke up with rifles pointed against our chests. It was a lieutenant, a black man, with a group of unmistakably bloodthirsty soldiers who did not know who we were. We had not been identified. At first, they did not identify us. They asked us our names. I gave a false name. Prudence, huh? (LAUGHTER) Shrewdness? (APPLAUSE) Perhaps it was intuition or maybe instinct. . . . . .

But that lieutenant, what an incredible thing! I have never told this story in detail publicly. This lieutenant was trying to calm down the soldiers but he could hardly stop them anymore. When they found the other comrades’ weapons while searching the surroundings, they were infuriated. They had us tied up with their loaded rifles pointing at us. But the lieutenant moved around calming them down and repeating in a low voice: "You cannot kill ideas, you cannot kill ideas". What made this man say that?

. . . . .

As that lieutenant said, ideas cannot be killed. (APPLAUSE) Our ideas did not die, no one could kill them. And the ideas we sowed and developed during those thirty odd years until 1991 more or less, when the special period began, were what gave us the strength to resist. Without those years we had to educate, sow ideas, build awareness, instill feelings of solidarity and a generous internationalist spirit, our people would not have had the strength to resist. Id.

The perhaps necessarily breezy translation provided by the Cuban state apparatus hides a bit of subtlety of meaning. Castro hints at some of the subtlety in that portion of the speech quoted above. But the phrase itself is worth a bit of deeper exploration. The quote, "las ideas no se matan" means "literally"-- ideas can't be killed-but it also carries some overtones-it can be a form of indirect command (don't kill ideas)-or it serves as a reference to the basic set of normative and universal truths which are beyond human power to alter, or to the actual person who holds these ideas and seeks to spread them. This last insight was the focus of the use of the phrase in the context of the "founding story" of his capture by the forces of Batista, the then current dictator of Cuba, and the ciritcal intervention by the officer. The argument that saved Castro's life, then becomes the founding myth of the Cuban revolution, conflating Castro as a person, Castro as the proxy for the ideas and system he was fighting for in Cuba, and ultimately for ideas in general.

Castro's use of the event, and the quote, "las ideas no se matan," is narrowly pointed --to the defense of the founding ideology of the Cuban Revolution against that of the United States and its global ideology. But there is irony here as well. Freed of its peculiarly Cuban context, the insight cuts in all sorts of directions. The larger truths embedded in this quote serve to complicate the simple elegance of its exposition by any advocate of a system of ideas. Ideas do not disappear. Ideas cannot be defeated. Ideas do not cease to exist. Ideas, principles, norms, values, appear and reappear. Ideas cannot be defeated. They cannot be erased. No level of human consensus can eradictae, trasnform or suppress ideas for any appreciable length of time. To seek a complete and eternal victory of one idea over others is to engage in a fool’s game. Or perhaps, is the stuff of Messianism--the forward thinking of hope for the advaocates of particular idea systems. More irony--the early Christians understood this well as they embraced the cultural values of the peoples Christian missionaries sought to convert. Elements of modern Hinduism attempt a similar feat—attempting to embed Buddhism and Sikhism within their own systems. Modern American Religion Clause jurisprudence is remarkable for its ability to produce wave after wave of older ideas, repackaged and recalculated, sometimes long after it appeared to have been utterly rejected. While it is possible to manage the power of ideas to control larger segments of human societys, it appears to be virtually impossible to suppress or extinguish the expression of the idea itself.

This is not to suggest that there is no truth, or that all values are relative or the usual related nonsense spewed by those who are comfortable in the false belief that their knowledge is sufficient to definitively judge ideas. Logos may well be perfection, but no one of us is Logos. Nor does it appear that Logos is a picky as some of us are with respect to its content. Ideas cannot be killed, and especially, it seems, thos eideas that stand to remind us that we may embrace only partial and imcomplete knowledge. Perhaps this is a way of understanding the rewification of ideas, Logos, as divine, as beyond the human ability to produce or control. Ultimately, it suggests that humility is the gateway to knowledge, and knowledge to the understanding of the nature of ideas that may not be killed. Humility in this context requires us to remember that even the best of us possess only a partial and subjective knowledge, truth. Ideas cannot be killed because we continue to strive for a perfection of knowledge, a perfection that will elude us for some time yet.

The issue of the creation, administration and termination of substantive academic programs in law schools is complex. It may involve issues of policy, firection, resources, and mission. As these change, substantive programs sometimes change as well. At times, those changes require terminating otherwise useful programs that no longer serve the Law School. It In the context of faculty governance, it is always a good exercise for faculties to take stock of a Law School's programs from time to time. But sometimes, there is a temptation to substitute process for substantive concerns in considering whether an academic program ought to be terminated. It is to that issue that I devote this sort essay.

When programs termination is sought for process reasons, it is sometimes an indication that an administrator has determined that a program ought to go, but is concerned about discussion on the merits. This concern may arise from any number of factors: fear of an adverse faculty determination, a wish to minimize faculty consideration of the issue for fear that a wider discusison migth ensue, one whose timing is sought to be controlled in other quarters, a need to find ways to control individual faculty from time to time, or a reassessment of the administrative distribution of burdens come to mind. There are other reasons no doubt.

Process based arguments for program termination usually fall into two categories:

1. The programs mislead students;2. The programs can be abused by students.

The arguments are related. Both suggest a strategic behavior approach to program analysis. One starts from a presumption that students are incapable of understanding the nature and character of the program as a result of which they misapprehend (and perhaps misapprehend to third parties) the character of nature of the program they have (successfully) undertaken.

The other starts from the opposite presumption, that students are not only quite capable of understanding the nature and character of the program, but understand both well enough to use the substance or procedures available through the program to effect strategic behavior having little to do with a desire to attain the substantive benefits made available through the program.

While inconsistent, it might even be possible for a student to know both too much and too little. My guess is that the apocryphal student is one who mistakenly believes that the program (for example a Certificate Program in International, Comparative and Foreign Law, or a Certificate in Critical Race Studies) has a greater substantive effect than it has in reality (perhaps even equating it with the substantive benefits of an advanced law degree) and (so the argument might go) would not have undertaken the course of study had she only known the reality of the limits of the ‘benefits’ of the certificate. As a consequence, this student (or even better one who is induced to register for the certificate (let's say) for purely strategic purposes) uses such registration to move up the queue for limited enrollment registration for which program participating students receive a preference (thus denying ‘more deserving’ students a coveted slot).

I suggest here that the arguments, should they be made, have no merit for the purpose for which they are deployed (termination of the programs) even if they might have merit from a more appropriately limited administrative perspective (minimize misapprehension and avoid abuse). Let me explain:

Assuming that there is a problem relating to information, it seems to me that the solution is not to eliminate the program with respect to which a descriptive ambiguity or misapprehension exists, but to cure the ambiguity or misapprehension. Thus, the answer to the first argument is this: provide more and better information. To choice any other alternative suggests a very bad precedent—that any program with respect to which ambiguity might be present is subject to a risk of termination on that score. Surely, if that is the case, there is hardly a program that is currently run that might not be fodder for elimination on that basis alone. I can’t imagine that is the sort of argument that might be raised in good faith. Having said this, substituing one program for another to comport program quality to expectations is not unreasonable. But that is a substantive argument rarther than one in which the only response to an information disjunction is: terminate the program!

Assuming there is a problem of abuse, the solution is similar: manage the abuse better. Virtually every program administered through a typical Law School is subject to abuse. I don’t think that, on that basis alone, we would consider eliminating the Law School’s programs (though that would certainly and definitively end the possibility of abuse). Abuse, standing alone, provides little basis for considering eliminating an otherwise substantively positive value program. Thus, the mere existence of abuse ought not to produce a strong presumption of terminability.

Moreover, the criticism of abuse really masks two questions (1) does the conduct complained of actually constitute abuse? and (2) are there methods to manage or eliminate the conditions leading to an excessively high level of abuse? With respect to the first, I am not sure that the use of a course preference option ought necessarily to constitute abuse. I believe that in the minds of some, it might constitute abuse only when coupled with bad intent. But, who can look with any confidence into the hearts of students. Students say lots of things we discount; students purport to provide rationales for doing things that we discount. To raise this possibility (in some students—I would be suspicious of any argument suggesting a 100% ‘bad motive’ rate) simply means that the administrator is uncomfortable with the preference system in general or as applied to the certificate programs. Well, if that is the case, then the focus of the discussion ought to be on the preference rather than on the termination of the program as a whole. More generally, it is not clear that abuse can be defined as any use of strategic thinking in designing a course of study, when the basis of a Law School education includes rigorous training in the utilization of strategic decision making for clients in every conceivable legal context. And I am unconvinced that strategic thinking in deciding to participate in a substantive program can ever rise to the level of unethical conduct.

That brings me to the heart of the issue—an issue of management. Do our administrators have the tools they need to manage any abuse that they believe, reasonably and appropriately, to exist? The answer, I believe is that they already possess the tools they need to adequately manage this ‘problem.’ A combination of mandatory student counseling and oversight at the early stages of program completion would provide significant control. Counseling all students about the evils of strategic thinking in course or program selection by the administrators who feel strongly about this (I don’t) may be a way to alert students to the culture of course and program selection that we appear to be moving toward (though this also might be a subject well suited to faculty discussion and approval).

What are left with? From my perspective very little that cannot be cured by appropriate and traditionally available techniques of program management. And that brings us back to where every faculty ought to begin--to a discusison of the substantive value of a program.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.